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ELRCAllowedCause No 2138 of 2016· [2023] KEELRC 357 (KLR)

Kilakoi v Olkejuado Water and Sewerage Company (Cause 2138 of 2016) [2023] KEELRC 357 (KLR)

Employment and Labour Relations Court
10 February 2023
SRStella Rutto
1,627 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A former manager won Kshs 1.6 million in unpaid salary plus pension remittance after his ex-employer ignored the court case entirely.

What this practically means

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Executive summary

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This was an undefended employment claim filed by way of statement of claim dated October 14, 2016. The claimant, formerly a technical manager with 20 years of service, resigned on December 14, 2015. By letter dated December 15, 2015, the respondent's managing director accepted the resignation and undertook to facilitate payment of unpaid salaries, a Family Bank loan check-off facility and statutory remittances. A statement dated December 18, 2015, approved and signed by the managing director, tabulated the claimant's dues at Kshs 1,784,925.00, of which only Kshs 146,197.00 was paid. The claimant also sought remittance of pension contributions of Kshs 1,478,700.00 to the National Water CPC staff superannuation scheme, per the respondent's own computation. The respondent never entered appearance or filed a response; the matter was certified undefended on December 7, 2017, and after fresh service and leave granted in March 2022 the respondent again defaulted. The claimant testified and adopted his documents, relying on three authorities in submissions. The court framed a single issue: whether the claimant was entitled to the reliefs sought. Finding the evidence uncontroverted, the court held that the claimant proved on a balance of probabilities that he was owed the outstanding balance, and that his pension benefits, being his property, ought to be remitted to his new scheme. Judgment was entered for the claimant with interest and costs.

Key legal issues

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01

Whether the claimant proved entitlement to unpaid salary arrears after resignation

Holding

Yes. The claimant proved on a balance of probabilities that the respondent owed him the outstanding sum, having admitted receipt of only Kshs 146,197.00 out of the approved Kshs 1,784,925.00.

Reasoning

The claimant exhibited the respondent's letter of December 15, 2015 accepting his resignation and undertaking to pay his dues, and a statement approved and signed by the managing director totalling Kshs 1,784,925.00. The claim was undefended; no contradicting evidence was tendered and no proof of payment beyond Kshs 146,197.00 was produced.

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02

Whether the respondent should be compelled to remit the claimant's pension to the National Water CPC staff superannuation scheme

Holding

Yes. The court ordered remittance of the computed pension of Kshs 1,478,700.00, noting that pension benefits are the claimant's property.

Reasoning

The claimant exhibited a statement of unremitted pension totalling Kshs 1,478,700.00 prepared, confirmed and signed on December 18, 2015. There was no evidence of transmission to the scheme. Although there was no communication from the claimant advising on remittance, the court found no reason to withhold transmission of his property to his new scheme.

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Legal principles established

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  • A party bears the risk of uncontroverted evidence where it fails to enter appearance or file a response; unrefuted evidence proves the claim on a balance of probabilities.
  • Pension benefits belong to the employee as property and ought to be remitted to his pension scheme.

Court orders

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  1. 1.Pay the claimant's outstanding salary arrears in the sum of Kshs 1,638,728.00
  2. 2.Pay interest on the amount in (a) at court rates from the date of filing the suit until payment in full
  3. 3.Remit the claimant's pension in the sum of Kshs 1,478,700.00 to National Water CPC staff superannuation scheme
  4. 4.The respondent shall meet the costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (3)

  • Amos Munyao Mutua v Friends Diner Company Limited
    Cause No 1367 of 2016
  • Gordon Kinoti Anampiu vs Economic Housing Group Limited
  • Michael Wanjau Gatheru v Nakumatt Holdings Limited
    Cause No 58 of 2017
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over an employment claim (statutory basis not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kilakoi v Olkejuado Water and Sewerage Company (Cause 2138 of 2016) [2023] KEELRC 357 (KLR)", Case Analysis (2023). Cause No 2138 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/357/eng@2023-02-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.